Manslaughter is quite a serious offence as it deals with a loss of life. A successful defence requires a lawyer that is well-versed in the different elements of the crime.
What is manslaughter?
Section 234 of the Criminal Code of Canada defines manslaughter as any culpable homicide that is not murder or infanticide. When someone causes the death of another person, they can be charged with manslaughter. It does not require intent to cause the death of another person.
Two common forms of manslaughter:
- Unlawful act manslaughter
- If someone does a criminal act, such as assaulting another person, and that unintentionally leads to the death of another person, a charge for manslaughter can be made out. Objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, is required. It is not required that the death itself was foreseeable.
- Criminal negligence causing death
- For a manslaughter charge by way of criminal negligence causing death, a person’s act or their omission to act must be a marked departure from the standard of care expected of a reasonable person in those circumstances. Their act or their failure to act needs to show a wanton or reckless disregard for the complainant’s life, and the risk of bodily harm must be foreseeable.
How does manslaughter differ from murder?
Both murder and manslaughter are culpable homicides. Murder is an intentional homicide whereas manslaughter is a lesser charge whereby death resulted when there was no specific intention to cause the death.
Manslaughter is considered to be a “lesser included offence” to murder. That means that even if you are charged with murder, you could ultimately be convicted of manslaughter instead, if the element of intention is not made out. Additionally, the Criminal Code allows for the partial defence of provocation to reduce murder to manslaughter.
Arrest and bail:
When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.
Due to the serious nature of the charge, you will be held in custody pending a bail hearing. You will be brought in front of a judicial official within 24 hours of your arrest. Not only will a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.
A lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and a lawyer can explain their role and adequately prepare them for court.
Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”
Since manslaughter is culpable homicide, the Crown will, in all likelihood, contest your release. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified.
There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:
- Whether you are a flight risk (primary ground);
- Whether you pose a threat to the public (secondary ground); and
- Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).
The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.
As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:
- Supervision through sureties;
- Curfews or house arrest, including ankle monitoring;
- Refraining from use of drugs and alcohol;
- Mandatory counselling;
- No contact with certain individuals; and/or
- Restrictions on where you can travel.
When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.
If you are denied bail, then you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a professional criminal lawyer maximizes your chances of being released.
It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.
Once a bail hearing is conducted, a lawyer can start preparing a successful defence for your case, if you choose to hire one.
A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.
In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.
A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.
If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.
There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.
If the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Since manslaughter carries with it a possible sentence of more than 14 years in prison, you will also be entitled to a preliminary inquiry, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.
Consequences if found guilty:
A guilty verdict for a charge of manslaughter carries the possibility of imprisonment for life. If a firearm was used, there is a mandatory minimum of four years in prison.
In addition, you will be subject to a weapons prohibition order. There is also a DNA order involved, where your DNA is kept in a national database by the RCMP. If you can demonstrate that the impact on your privacy and security of the person is grossly disproportionate to the public interest, then the judge may not make the order. That being said, due to the seriousness of the offence, it is very hard to successfully make this claim.
A lawyer can help you understand the possible ramifications of conviction. Moreover, they can help you avoid being convicted altogether. If you decide to plead guilty, they can negotiate with the Crown and present mitigating factors to the judge so you receive the best possible sentence in the circumstances.
It’s vital to hire a lawyer
Being charged with a criminal offence, especially manslaughter, is a stressful and life-altering experience. It is important to seek professional advice from a lawyer about your rights from the beginning.
A lawyer can also do much more. They can:
- Work to secure your release with the most favourable conditions;
- Help you navigate the criminal justice system;
- Ensure that the Crown meets its disclosure obligations;
- Identify systematic or administrative errors in the criminal process, including Charter rights violations;
- Speak to the Crown on your behalf, negotiate, and advise you of your options;
- Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
- Gather further evidence to support your version of the events;
- Obtain a more lenient sentence in the event a guilty plea or conviction is entered.
All criminal cases are complex and fact specific. We have provided general information about how manslaughter cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.